Environmental Justice Update
May 25, 2021
We are providing this update on significant new developments in federal and state laws relating to environmental justice (EJ), including new federal policies under the Biden administration, expanded enforcement efforts in California, and new EJ legislation in New Jersey.
In 1994, President Clinton issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations,” requiring USEPA to consider whether its policies and regulations “disproportionately impact” minority populations. The Order was issued, in part, based on published studies indicating that a substantial number of hazardous waste treatment, storage and disposal operations are located in areas with low income, minority populations.
USEPA’s Office of Civil Rights also issued draft guidance on EJ claims arising under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The first draft, released in February 1998, drew opposition from virtually all stakeholders, including state environmental agencies, who expressed concern that it would allow EJ issues to be raised after a permit was issued. Congress later moved to bar EPA from using that draft guidance to process complaints under Title VI and USEPA ultimately withdrew the draft altogether. In June of 2001, EPA’s Office of Civil Rights issued a second draft, which provided a methodology for analyzing claims of adverse disparate impacts. The public comment period on that draft closed in 2002, but a final guidance document was not issued.
In the meantime, several key court decisions have called into question whether Title VI authorizes EPA to address disparate impacts (as distinct from acts of intentional discrimination). In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court ruled that private citizens have no implied right of action under Title VI to address disparate impacts. Similarly, in South Camden Citizens in Action v. NJDEP, 274 F.3d 771 (3d Cir. 2001), the Third Circuit held that 42 U.S.C § 1983, the general federal civil rights statute, cannot be used to enforce EPA’s Title VI disparate impact rules.
On September 18, 2006, EPA’s inspector general issued a report (“EPA Needs to Conduct Environmental Justice Reviews of Its Programs”) criticizing EPA for failing to implement the executive order and directing EPA to identity those programs, policies and activities, which should be subject to EJ review.
Decisions of the EPA Environmental Appeals Board (EAB) have tended to reject EJ claims in permitting decisions, either based on a finding that no environmental impact would occur, e.g., In re: Shell Offshore Inc., 2007 WL 3138040 (EAB 2007), or that no disadvantaged population falls in the impact area, e.g., In re: Beckland Group LLC, 2008 WL4517160 (EAB 2008). One noteworthy decision is Communities for a Better Environment et al. v. City of Richmond et al., where a California Court of Appeals upheld a decision finding an oil refinery facility expansion impact analysis inadequate, in part, because it failed to consider disproportionate impact on working-class communities, CA 125618 (Cal. App. 2010).
Recent California and Federal Updates
New California and federal EJ efforts focus on increased surveillance and enforcement of environmental requirements for impacted communities.
In particular, California’s EJ law directs the California Environmental Protection Agency (CalEPA) to identify and prioritize inspection and enforcement in “communities disproportionately burdened by multiple sources of pollution with populations more sensitive to pollution risk”, Cal Gen Code 65010.12. California’s current Attorney General, Rob Bonta, recently announced an expansion of the California Department of Justice’s Bureau of Environmental Justice (“Bureau”), which will allow the Bureau to increase its oversight of EJ enforcement actions in the State. The expanded Bureau will focus its enforcement efforts on penalizing and preventing illegal discharges of pollutants into the air and water from facilities, and eliminating or reducing exposure to lead and other toxins in the environment and consumer products.
California has also made recent advancements in EJ assessment efforts. In 2017, the California State Office of Environmental Health Hazard Assessment (OEHHA) issued an online evaluation system (CalEnviroScreen 3.0), which can be used to determine the EJ status of a given community. A more sophisticated system (CalEnviroScreen 4.0) is under development. OEHHA issued a draft version of CalEnviroScreen 4.0 in March 2021, and public comments on the draft recently closed on May 14, 2021. OEHHA is expected to issue a final version of CalEnviroScreen 4.0 in the near future.
At the federal level, the Biden administration has launched a similar program for EJ inspection and enforcement, as memorialized in an April 30, 2021 memo from new Administrator Michael Ragan, directing EPA to pursue available statutory authorities in affected communities. Foremost among these, is the National Air Toxics Assessment program (for 187 identified Hazardous Air Pollutants) under the Clean Air Act where permissible emissions are considered in light of community exposure. Larry Starfield of the EPA Office of Enforcement and Compliance Assurance is taking the lead here and has noted that the Clean Air Act Risk Management and Health Hazard Evaluation authorities will be used in some instances to define acceptable community exposure levels that require compliance measures beyond what is typically required under a Title V permit. The EPA has also announced that it will expand the scope of toxic release inventory reporting requirements in an effort to link Toxic Substances Control Act enforcement with its EJ efforts. More information about EPA’s current EJ program can be found here.
New Jersey’s New Environmental Justice LegislationIn September 2020, New Jersey enacted new EJ legislation requiring its Department of Environmental Protection (NJDEP) to evaluate the environmental and public health impacts of certain facilities on overburdened communities when
reviewing certain permit applications. NJ Stat. § 13:1D-157 – 13:1D-161. The legislation applies to landfills, recycling facilities, incinerators and a range of other facilities, and it defines “overburdened communities” as those in which at least (1) 35% of households qualify as low-income, (2) 40% of residents identify as minority, or (3) 40% of households have limited English proficiency.
The legislation requires that facilities located in overburdened communities prepare an EJ impact statement and conduct a public hearing as part of the permitting process. NJDEP may deny a permit if the facility would “cause or contribute to adverse cumulative environmental or public health stressors that are higher than those borne by other communities,” unless the facility serves a compelling public interest, in which case NJDEP may issue a permit that imposes conditions to reduce adverse impacts on the overburdened community.
NJDEP is currently developing regulations to implement the new EJ legislation. Uncertainties remain as to the timing of the regulations and NJDEP’s enforcement policies, including how the legislation will apply to expanded facilities and to renewals of operating permits under Title V of the Clean Air Act.
Environmental justice considerations should be regarded with care, especially in light of the Biden administration’s efforts to increase enforcement at the federal level. Environmental justice claims have often become a precursor to (or have been combined with) toxic tort suits. They may also be central to gaining use approval for redevelopment of contaminated sites (or “brownfield” projects). Environmental justice concerns may be fueled, in part, by information on permitted releases and chemical storage reported under federal and state right-to-know laws.
Several states, including California and New Jersey, are also proceeding to undertake EJ initiatives independent of federal enforcement. State EJ initiatives may impose stricter requirements than those implemented at the federal level.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in New York and Missouri, Jeffrey Kohn, an O'Melveny partner licensed to practice law in New York and New Jersey, and Chris Bowman, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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